Petitioner's motion and Respondent's cross motion are decided as follows:

Respondent operates a law office at 100 Quentin Roosevelt Boulevard, Garden City, New York, which he has held in tenancy from Petitioner since December 15, 1993. Over the course of the past several months, Respondent has failed to make timely or complete rental payments, causing Petitioner to sue for payment of Respondent's balance. Petitioner moves for summary judgment in this commercial nonpayment proceeding for collection of $31,903.30, constituting rental arrears and late penalties, plus an additional $2,500 in attorney's fees. Respondent opposes this motion, stating that there is a dispute as to a material fact and that Petitioner's claim has been extinguished due to acceptance of Respondent's partial payments. Respondent also moves for summary judgment on counterclaims arising from Petitioner's alleged breach of the lease in failing to provide electricity, ventilation, heating, air conditioning, cleaning services and parking. Petitioner opposes this motion based upon an anti-counterclaim provision in the lease.

The Court finds that there is no issue as to a material fact based upon the pleadings of both parties. First, Respondent claims that he is current on his rent payments, as shown by the copies of rental checks entered into evidence. Yet, all of the checks entered into evidence by Respondent have been accounted for in Petitioner's ledger, and there is still a balance. Thus, this evidence is unpersuasive in raising an issue of a material fact as to payment.

Next, Respondent alleges that the damages sought by Petitioner have changed in "drastic and unexplained" fashion from the $36,361.30 that was originally sought in the affirmation. Likewise, this is untrue, as the difference is explained in the ledger submitted in Petitioner's [*2]opposition papers. Petitioner arrived at this change in arrears owed, based upon the following calculation:

Furthermore, the Court finds that Petitioner's acceptance of Respondent's partial payments does not constitute accord and satisfaction of his rental arrears. Respondent's position is based on the language in ADA Dining Corp. v. 208 East 58th St., 2008 NY Slip Op. 32813(U) [2008], which states:

As a general rule, the acceptance of a check in full settlement of a disputed, unliquidated claim, without any reservation of rights, operates as an accord and satisfaction discharging the claim. The theory underlying this common-law rule is that the parties have entered into a new contract discharging all or part of their obligations under the original contract.

The Court finds that Respondent's obligations to pay rent is not defeated by any claim of failure by Petitioner to provide services. See, Westchester County Indus. Development Agency v. Morris Indux. Builders, 278 AD2d 232, 717 NYS2d 279, 2000 NY Slip Op 10725 (2nd Dept, 2000), wherein the court held:

A tenant's duty to continue to pay rent is not suspended, even if the landlord breaches its obligations under the lease, unless there is an express provision in the lease declaring the circumstances under which the tenant may withhold his rent (see, 56-70 58th Street Holding Corp. v. Fedders-Quigan Corp., 5 NY2d 557, 186 NYS2d 583, 159 NE2d 150; 1225 Fulton Ave. Corp. v. Carbonell, 24 NYS2d 749; Matter of New York City Hous. Auth. v. Jackson, 58 Misc 2d 847, 296 NYS2d 237). No such lease provision exists here. Particularly in a commercial context, where both parties are represented by counsel, "[t]he obligation of a commercial tenant to pay rent is not suspended if the tenant remains in possession of the leased premises, even if the landlord fails to provide essential services" (Towers Org. v. Glockhurst Corp., 160 AD2d 597, 599, 554 NYS2d 242; see, City of New York v. Pike Realty Corp., 247 NY 245, 247, 160 NE 359; Douglas v. Chesebrough Bldg. Co., 56 AD 403, 67 NYS 755).

As for Respondent's counterclaims, paragraph 34.1 of the lease states, "If the Landlord commences any summary proceeding for nonpayment of rent, Tenant agrees not to interpose any [*3]counterclaim of whatever nature or description in such proceeding." This provision contemplates and precludes the exact situation herein, and such a provision's enforceability is affirmed in Rasch's Landlord & Tenant, § 43:40 at 142-43 (4th Ed. 1998). According to Rasch:

A provision in a lease prohibiting the interposition of counterclaims in summary proceedings for nonpayment of rent is valid, and a counterclaim interposed in violation of such a provision may be dismissed without prejudice to the tenant's right to bring an independent action based thereon.

Last, Petitioner is entitled to attorney's fees, pursuant to paragraph 32 of the lease, which provides:

If Landlord is compelled to or does incur any expense, including reasonable attorney's fees, instituting, prosecuting and/or defending any action or proceeding instituted by reason of any default of Tenant hereunder, the sum or sums so paid by Landlord, with all interest, costs and damages, shall be deemed to be additional rent hereunder and shall be due from Tenant to Landlord . . . .

Petitioner's motion for summary judgment is hereby granted in the amount of $34,403.30, which constitutes $31,903.30 for rental arrears and $2,500 for attorney's fees. Defendant's motion for summary judgment is denied, and his counterclaims are dismissed. There will be no sanctions imposed on either side in this matter.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:April 27, 2009

CC:Cary Scott Goldinger, Esq.

Debra Gentin Tate, Esq. [*4]

SF/cm